BD. OF COM'RS OF PUTNAM COUNTY v. Barefoot
313 Ga. App. 406
| Ga. Ct. App. | 2011Background
- Barefoot injured on December 14, 2007 on Lower Harmony Road in Putnam County while avoiding an oncoming truck;
- The road had been patched the day before by a County pot-patcher that dispersed gravel; the pot-patcher was not present at the time of the accident;
- Barefoot sued the driver and the County, claiming a waiver of sovereign immunity under OCGA § 33-24-51 via liability insurance for use of a motor vehicle;
- County moved for summary judgment arguing no motor vehicle was in use and no employee was involved at the time; the trial court denied the motion;
- The trial court held there was sufficient evidence of the pot-patcher’s use to waive immunity, but on appeal the court reversed and held the use was too remote in time to waive immunity; the judgment was reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the pot-patcher's prior use constitutes use for waiver | Barefoot argues the pot-patcher’s use yields a waiver | County contends no use occurred at the time of injury | No waiver; too remote in time |
Key Cases Cited
- Williams v. Whitfield County, 289 Ga.App. 301, 656 S.E.2d 584 (2008) (strictly construed waiver; remote use not suffice)
- Gish v. Thomas, 302 Ga.App. 854, 691 S.E.2d 900 (2010) (strict construction of OCGA 33-24-51; use must be connected to the injury)
- Mitchell v. City of St. Marys, 155 Ga.App. 642, 271 S.E.2d 895 (1980) (use beyond contact not per se; remote factors considered)
- Am. Cos. Co. v. Fisher, 195 Ga. 136, 23 S.E.2d 395 (1942) (goods no longer in vehicle; not in use)
- McElmurray v. Augusta-Richmond County, 274 Ga.App. 605, 618 S.E.2d 59 (2005) (use when vehicle actively performing function)